Written by Martin P.J. Kratz, QC
We have noted that Canada’s Anti-Spam legislation (CASL) is complex, onerous and ambiguous. In the face of the uncertainties created under the CASL regime, organizations seeking to comply with the law still await substantial independent court interpretation of the legislative or regulatory requirements.
Further uncertainty arises as the regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), interprets the requirements of CASL in a manner that sometimes does not appear specifically prescribed in CASL itself.
Section 3(1) of the Electronic Commerce Protection Regulations, Telecom Regulatory Policy CRTC 2012-183, requires that the unsubscribe mechanism referred to in section 6(2)(c) of the act must be set out “clearly and prominently”. Section 3(2) also requires that the unsubscribe mechanism must be able to be “readily performed”.
It is a fair observation that what may be “clearly and prominently” or “readily performed” may well cover a range of alternatives. Given the limited consultation that occurred before the act was proclaimed, it is not surprising that there will be novel situations that the act did not contemplate and one would think that the benefit of the doubt might go to an organization that appears to be making a good faith effort at compliance.
In Telecom Regulatory Policy 2012-183, the CRTC stated that “in prescribing an unsubscribe mechanism that is less prescriptive and more technology neutral than what was originally proposed, the mechanism must be consumer-friendly”. Further, in Compliance and Enforcement Information Bulletin CRTC 2012-548, the CRTC stated that it considers that in order for an unsubscribe mechanism to be “readily performed,” it must be accessed without difficulty or delay, and should be simple, quick, and easy for the consumer to use.
In Compliance and Enforcement Information Bulletin CRTC 2012-548, the CRTC provides an example, where they show a link to a web page where the subscriber is given the option to choose either to unsubscribe from all message or only to promotional messages. The CRTC notes this as an example, and does not indicate that it is the only way to comply.
Unfortunately, CASL creates uncertainty of what is actually a “commercial electronic message” (CEM) and this uncertainty is compounded with section 6(6) of the act that seems to imply that operational non-promotional messages may be CEMs.
Because of the difficulty assessing the issue of what is a CEM, many organizations include the prescribed information and an unsubscribe mechanism in both promotional and operational messages.
An odd result can then arise if an organization includes the prescribed information and an unsubscribe mechanism in an operational message. What does it mean if a customer unsubscribed from such an operational message? There is an underlying contract. The act of unsubscribing creates conceptual and operational problems for the organization who is seeking in good faith to perform on the contract with the customer.
A novel case arose in the case of Ancestry Ireland Unlimited Company where they sought to address the ambiguity of what an unsubscribe means in the context of operational messages. Ancestry has two kinds of messages. In one case, Ancestry sends messages related to products that customers have subscribed to receive. In the second case, Ancestry sends promotional messages.
In the case of Ancestry, they sought to differentiate between promotional and operational message by having a different form of unsubscribe mechanism or preference management system for each type of message.
The CRTC took the view, in its report on the Undertaking entered into with Ancestry, that the message related to products the customer has subscribed to (operational messages) were CEMs and that “it was not possible to unsubscribe from all messages with just one operation, which does not comply with the CRTC Regulations”.
The complexity is that the Electronic Commerce Protection Regulations do not say that one must be able to unsubscribe with only one operation. They say that the unsubscribe mechanism must be able to be “readily performed”.
As a result, organizations seeking to comply with CASL in good faith face further challenges as it appears the CRTC’s view is now that “readily performed” means “one operation”. Even the example, noted above, in Compliance and Enforcement Information Bulletin CRTC 2012-548, would require several steps to effect the unsubscribe operation—link to the web pages followed by a click on the choice provided.
As for Ancestry, rather than dispute the case, they agree to an undertaking to ensure compliance with CASL, like so many other legitimate organizations before them.
In the case of Ancestry’s undertaking, no fine or penalty was imposed by the CRTC.
The Government of Canada has committed to address the ambiguities in CASL and reduce the costs of compliance thereby. While organizations wait for this needed law reform, they need to be alert to the CRTC’s interpretation of CASL and adjust their own compliance efforts accordingly in order to minimize possible liability.